Like a wounded bull

Stephen Warne has drawn my attention to an interesting article in Justinian, a subscription only journal for lawyers. In the article, the author draws a comparison between pirate ships and law firms:

US economics professor Peter Leeson…recently wrote a paper on The Law and Economics of Pirate Organization.

Pirates created highly successful criminal organisations, and Leeson says that:

“Contrary to most people’s images of pirate crews, they were quite large. Based on figures from 37 pirate ships between 1716 and 1726, it appears the average crew had about 80 members … crews of 150-200 were not uncommon…

“Unlike the swash-buckling psychopaths of fiction, historical pirates displayed sophisticated organization and coordination… They successfully cooperated with hundreds of other rogues. Amidst ubiquitous potential for conflict, they rarely fought, stole from, or deceived one another.”

Leeson also observes that pirates considered theft aboard their ships especially heinous, and he quotes an observer who said, “great robbers as they are to all besides, [pirates] are precisely just among themselves”.

Modern law firms invite comparisons with these pirate organisations, with law firms appearing to have improved the business model.

…

Modern lawyer piracy is not constrained by the law either, but for different reasons.

Lawyer/pirates control the wording of the law. They make sure it can’t easily reach out to them.

On top of that they are in charge of decisions to prosecute. Better still, unlike ordinary pirates, lawyers CAN rely on the judicial institutions to help them.

The judiciary is full of “successful” former lawyer pirates, who find it difficult to criticise others for doing what they themselves used to do.

There is a lot of camaraderie and “collegiality” in the legal profession, but perhaps the best devices of the lot are “disciplinary tribunals” actually dominated by current or former lawyer pirates, which contain a smattering of “lay” people to support claims of independence from the profession.

When lawyers are caught committing lawyering crimes, they can be shunted off to friendly tribunals instead of the ordinary criminal courts.

Last month NSW lawyer Leon Nikolaidis was sentenced to two years jail for criminal fraud, having been found guilty by a jury in an ordinary criminal court.

Unusually, this jailing of a lawyer was not for a trust account defalcation. NSW Legal Services Commissioner Steve Mark…said it was one of the few occasions when a solicitor had been convicted of criminal fraud within a legal practice. He said:

“There is a perception that a lawyer acting in a professional capacity attracts conduct charges, but not criminal charges… Even serious misconduct issues almost never lead to criminal prosecutions.”

There is one big exception. As with those old time pirates, thieving off other lawyers is regarded as particularly heinous.

Theft by lawyers from trust accounts is a bit like thieving off other lawyers, since it frequently results in claims against fidelity funds which the other lawyers have to keep topped up from their own pockets.

This fits in precisely with a discussion Stephen and I were having in the comments section of a previous post, wherein we noted that the ethical breach which is seen as particularly heinous by the profession is the trust defalcation. Our theory was in part that such breaches are easy to prosecute, dealing with numbers rather than thorny questions of ethics, and the prophylactic nature of the fiduciary obligation ensures that any defalcation will be a clear breach. But this article provides another explanation for the prevalence of trust defalcations as an ethical breach: essentially, lawyers who defalcate from trust funds steal from other lawyers, and therefore are treated particularly harshly.

Whereas lawyers stealing from clients…well, who is to judge? Other lawyers.

Services are a hard thing to give a monetary value. And the situation gets particularly thorny when one represents a client, and the client loses. Strangely enough, the client doesn’t feel like paying the bill any more, even though the lawyer may have done the best possible job in the circumstances.

I think a lot of the problems with billing arise from six minute billable units, which were the subject of my second post on this blog, so obviously they’ve been a bugbear of mine for a while. I was trying to explain the concept to some non-lawyer acquaintances who were simply agog at the notion. “What, you charge for every six minutes you spend on a file? Doesn’t that rack up awfully quickly?” said the non-lawyers. Well, yes. And that’s the idea. But further to that, one’s promotion within a law firm depends on the number of billable units one racks up.

So six minute units provide an incentive to:

(a) be inefficient;

(b) be a workaholic and work insane hours to get ahead; and/or

(c) lie about how long something took you.

Unfortunately for me, both (a) and (c) are totally against my world-view. And once I had a family, I had no desire to keep on being a workaholic. So I quit being a solicitor.

I’m sure there are a lot of lawyers who are less scrupulous than I with regard to fudging the figures. They figure everyone does it, and if they just massage it up a little bit, who’s going to notice? The satirical book Hell has Harbour Views features lawyers who routinely bill 27 hours a day (even if they’ve stayed up all night, it has to be false, think about it). I couldn’t laugh too hard at this – too close to the bone.

The difficulty is in judging when a bill is too large. Little increases are hard to pick up. Of course, as I noted in my earlier post, the Legal Practice regime in Victoria seeks to ensure solicitors go into an immense deal of detail in their bills. And it requires solicitors to offer an effective invite on the face of the bill for the client to complain or sue. This doesn’t really fix the problem. A poor old client has to get involved in further litigation. Why not try to stop the incentives to overbill by abolishing six minute billable units?

Obviously, there’s a need for something to change. As I said in another very early post, I think legal services are beyond the range of many ordinary people. And this may lead to the high volume of litigants in person in the court system, who believe that they are better off running their own case. In some instances, they may be right: I’ve seen some terrible lawyers out there.

If the legal profession wants respect in the community, it has to look at legal ethics as more than just trust defalcation. Good legal ethics also means charging clients a fair price, and doing a good job. I believe that if we deemphasise billable hours, this would improve morale and efficiency in law firms, and take away the incentive to “fudge the figures”.

Any comments welcome.

Would you like fries with your writ?

Today I found this interesting post from Robert Ambrogi’s Law Sites blog. It concerns a site called “Expert Legal Advice“, where UK punters in search of legal advice call up a team of Indian lawyers in New Delhi and get advice from them. The site explains:

This site has been created to satisfy the demand for basic legal advice at a low fixed price. Few of us are sufficiently important to our solicitors to be confident in troubling them for simple advice. Even fewer want to pay them £250 an hour to take full instructions and provide advice in writing.

NL Advice is provided by a team of solicitors in New Delhi supported by the same precedents and sources as are available to UK solicitors. These are very bright people who have shown a real knowledge of English law before they even begin to look at legal source material.

…

The Net Lawman advice system fills a gap. The law compels solicitors to deal with advice in a complicated and expensive way. They do not choose the system. However, there are very many occasions when the advice you seek simply does not justify a bill for some hundreds or even thousands of pounds.

Because we are not solicitors, we do not offer a full range of legal services. But within the range we offer, we aim to provide a service second to none. You will find us fast, receptive and efficient. If you do then need help from a solicitor, the information and advice we have provided to you will enable you to make the best and fastest use of their expensive time.

I have explained in a few different previous posts that I think that legal representation is too expensive for most ordinary people. I certainly couldn’t have afforded to hire myself at the rates at which I used to be charged out in my last job. And I wasn’t working for a “Top Tier” firm either (although I have done so in the past). I suspect the six-minute billing unit is instrumental in pushing up legal bills, which is one of the reasons why I continue to call for its abolition. Six minute billing makes firms obsessed about meeting targets and maximising profits. It makes lawyers forget what their aim should be: to serve the client efficiently and effectively.

One of my first posts described a horrible situation where we were sued by our former landlords. I am an educated confident lawyer, a commercial litigator and experienced advocate. How much scarier would it be if you were a non-lawyer who could not afford legal representation? There is a real potential for unscrupulous individuals to use litigation to bully people. This is why I volunteer at a community legal centre; I want to help those who do not have the resources to obtain advice. Usually the answer does not take too long to come up with, and the same kinds of questions come up again and again.

However, the answer is not just to provide more funding for community legal centres, although that certainly helps. The problem is deeper than this. The fact is that the law is scary and arcane, and often people don’t know where to turn when a legal problem arises. Unfortunately, many lawyers like the law to be unknowable, because it keeps them in a job. I would like everyday people to have an opportunity to learn about and understand basic concepts of the law (contracts, mortgages, wills, personal injury and the like).

If a person cannot find adequate legal representation, they often have to represent themselves. I have written posts on litigants in person previously (here and here). Having worked in and around courts for most of my career, I have always found litigants in person very difficult to deal with. Litigants in person use up valuable court time, often with spurious arguments, but a judge cannot just dismiss them, because there may be an argument of value in there.

So, the Net Lawman site is right: there is a gap in the market for people who just want simple legal advice and don’t want to have to pay through the nose for it. Because I am a nerd, I couldn’t help thinking about Robert Ambrogi’s question. How can these guys give quasi-legal advice? This seems like a worrying kind of arrangement to me.

I think Net Lawman tries to avoid infringing UK law by explicitly stating on the website that the advisers are not lawyers and they do not purport to give advice as qualified solicitors.

Section 20 of the Solicitors’ Act 1974 (UK) (“the Act”) says that no unqualified person is to act as a solicitor:

(1) No unqualified person shall–
(a) act as a solicitor, or as such issue any writ or process, or commence, prosecute or defend any action, suit or other proceeding, in his own name or in the name of any other person, in any court of civil or criminal jurisdiction; or
(b) act as a solicitor in any cause or matter, civil or criminal, to be heard or determined before any justice or justices or any commissioners of Her Majesty’s revenue.
(2) Any person who contravenes the provisions of subsection (1)–
(a) shall be guilty of an offence and liable on conviction on indictment to imprisonment for not more than two years or to a fine or to both; and
(b) shall be guilty of contempt of the court in which the action, suit, cause, matter or proceeding in relation to which he so acts is brought or taken and may be punished accordingly…

I presume that the advisers would not be able to issue proceedings on behalf of clients, and if a client had a problem that needed a litigator, he or she would be referred to a litigator so as not to contravene this section. Sections 22 and 23 provide that certain documents may not be provided to clients by unqualified persons for reward. Presumably the advisers would not be authorised to provide such documents, and again, a client who required such a document would be referred to a solicitor.

Section 21 of the Act says that an unqualified person is not to pretend to be a solicitor: but in this case, the advisers are not pretending to be solicitors – they clearly state that they are not solicitors.

Furthermore, the advisers are protected because they are not within the jurisdiction. Section 87 of the Act provides that “solicitor” means a solicitor of the Supreme Court of England and Wales. These advisers are not purporting to be solicitors of the Supreme Court of England and Wales, they just purport to have some detailed knowledge of the jurisdiction, and to be qualified lawyers within their own jurisdiction (India). It’s a fine line to draw.

Nevertheless, I was wondering whether this arrangement complies with the International Code of Ethics 1988 established by the International Bar Association. Rule 20 of the Code states:

Lawyers should not permit their professional services or their names to be used in any way which would make it possible for persons to practice law who are not legally authorised to do so. Lawyers shall not delegate to a legally unqualified person not in their employ and control any functions which are by the law or custom of the country in which they practice only to be performed by a qualified lawyer.

Presumably, Net Lawman would argue that the advisers are in their employ and control, and thus they do not infringe this rule.

Although, as I have outlined above, I have some sympathy for the argument that even the most simple legal services are not within the grasp of ordinary people, I am not sure that outsourcing to Indian “quasi-lawyers” is the answer. It seems fraught with risk, particularly as the advisers are on the other end of the phone. I’m a big fan of face-to-face meetings with a client. Maybe lawyers need to reconsider how they charge, so that they do not lose business to organisations such as this. Of course, we’re entitled to earn our living! (Lawyers are human too, we really are). But we should also remember that our function is to mediate disputes between people, and that we should not put our services too far out of the financial range of ordinary people.

Update

For more thoughts on this topic, see John Flood’s post here at Random Academic Thoughts.

The Sovereign State of I Do What I Want

With some experience in courts and commercial litigation, I must confess that my heart always sinks when I hear of a defendant who has set up his or her own country (in documents, I have seen such “countries” variously described as “principalities”, “sovereign states” or even “palatinates”).

Usually defendants who take such measures are resisting repossession of a house or trying to argue that they don’t have to pay Federal or State taxes. Of course, they are unrepresented litigants (ie, litigants in person). Often they’ve written to the UN for confirmation of sovereign nation status. Invariably, they claim rights pursuant to the Magna Carta, the Bill of Rights and various other miscellaneous documents. Often they say that the Constitution was not validly enacted. There’s usually a bit about Freemasons thrown in. (In an idle moment of curiosity, I once considered ringing the Freemasons to find out what they thought about being the bugbear of litigants in person.)

I’ve written posts about litigants in person before. The tragedy is that litigants in person who adopt these kind of conspiracy theories often let it consume their life. They waste their own time, but also the time of the Court and the time of lawyers. I never heard that any litigant in person who ran a Masonic conspiracy argument or a Magna Carta argument was successful in any way. It’s desperation stuff, but they push it nonetheless. Sometimes they end up in gaol on charges of contempt of court.

The sovereign state invented by litigants in person usually lacks sophistication. However, it seems that some have more resources than others. A report in Yahoo News said:

Two men who set up their own sovereign state in a Queensland suburb and made up their own currency to pay bills have been ordered by a court to stop operating as a bank.

In the Federal Court in Brisbane, Donald James Cameron and Darryl John Wheeley, who operate from the southside suburb of Moorooka, were ordered to stop operating their unauthorised financial business – the Federal State Bank of Australia – as a bank after an application made by the Australian Prudential Regulation Authority (APRA).

Evidence to the court said the men made fake currency and cheques valued at more than $500,000 and used it to pay bills including rent, mortgage repayments, phone bills and legal fees.

The currency was created under the authority of their own so-called Independent Sovereign State of Australia, of which Cameron is the self-styled attorney-general and chief justice. He also calls himself the archbishop of the Church of Love and Peace.

All very funny – until you think about the small businesspeople who were ripped off by these guys when they tried to cash “cheques” and “bank notes”. Not much love and peace being generated there…

Justice for all?

In The Age today, I read an opinion by George Williams, a professor at the University of New South Wales. In summary, his opinion is that the law needs to be reformed in four ways:

1. There needs to be more funding for legal aid and community centres. Obtaining justice is highly dependent upon being able to afford legal representation.
2. The federal system needs to be reformed. At the moment, there is a tremendous waste of money and resources, as well as a tendency for each level of government to blame the other for problems.
3. David Hicks needs to be given a fair trial or returned to Australia.
4. Australia needs a national charter of human rights.

It’s interesting to read someone else’s ideas for legal reform. Let’s look at each point.

1. Legal representation

I would definitely agree that the legal system is weighted towards those who can pay for legal representation. One of my first posts on this blog was on how awful it was to be sued by our former landlords. And I am an educated lawyer, a commercial litigator and experienced advocate. How much scarier would it be if you had no legal training and no legal representation? There is a real potential for unscrupulous individuals to use litigation to bully people. Legal representation is far too expensive for most ordinary people. I know that I certainly couldn’t have afforded to hire myself at the rates at which my last firm used to charge. And I wasn’t working for a mega-firm at that time, either. When I worked for a mega-firm…well, let’s just say wounded bulls weren’t a patch on one of our firm’s bills. I suspect the six-minute billing unit is instrumental in pushing up legal bills. I continue my campaign for its abolition (mentioned in this post). I think six minute billing makes firms obsessed about meeting targets and maximise profits, and obscures the fundamental purpose of a law firm: to serve the client efficiently and effectively. It also drives legal representation out of the range of the ordinary person.

The answer is not just about providing more legal aid and funding for community legal centres, although that certainly helps. But I think it is deeper than this. I would like to see more opportunity for everyday people to learn about and understand basic concepts of the law (contracts, mortgages, wills, personal injury and the like). Unfortunately, many lawyers like the law to seem arcane and unknowable, because it keeps them in a job. I’m sure some lawyers deliberately over-complicate a matter so that they appear to be clever. Also, as I’ve mentioned in a previous post, sometimes lawyers don’t have an opportunity to sit down and think: “What’s this dispute about really?”

If a person cannot find adequate legal representation, they often have to represent themselves. I have written posts on litigants in person previously (here and here). Having worked in and around courts for most of my career, I have always found litigants in person very difficult to deal with. Litigants in person certainly use up valuable court time, often with spurious arguments, but a judge cannot just dismiss them, because there may be an argument of value in there. As I have said previously, the ideal situation is to find out what makes a litigant in person so that it can be nipped in the bud before the person becomes a fully fledged conspiracy theorist. Is it because legal advice is too expensive or difficult to obtain? Or is it because the person does not wish to take the legal advice he or she initially received? I think there needs to be more research into this.

2. The Federal System

This isn’t the first law reform that would spring to my mind, but I would also agree that the present system doesn’t really work. There is far too much opportunity for “buck-passing”. When I studied Constitutional Law many years ago, we learnt about Vertical Fiscal Imbalance – that is, the Commonwealth has all the money, and the State has responsibility for vital services like health and education. Obviously, it is a legal matter in that the High Court has construed the Federal taxation powers very broadly, narrowing the pool that the States can dip into.

I also think the taxation system in this country is very badly organised. All too often, money goes from one arm of government to another. So, as I have mentioned in a previous post, we got the baby bonus when our daughter was born, but had to pay it straight back to the Federal Government a month later because of the tax my husband had to pay after he got retrenched. And what about the first home owner’s grants? The Federal and State grants together don’t cover the amount of stamp duty a home owner has to pay to the State government – why not just give it straight to the State government instead of pretending to “give” it to us?

3. David Hicks

As I have discussed in a previous post, I don’t think Hicks should continue to be detained by the US. It is hypocritical of Australia and the US to try to force “democratic values” on other countries, but fail to practice them in one’s own country.

Nonetheless, I detect a certain amount of “bandwagoneering” on this topic. Yes, what has happened to Hicks is horrible, and it should not be allowed to continue. But lawyers should not be distracted by a high-profile “sexy” issue such as this, which affects only one person (albeit in a disasterous way). I am concerned that it is easier for lawyers to concentrate on an issue like this, and forget the smaller problems which affect many Australian people (such as the difficulties in obtaining legal representation mentioned at the beginning of this post). Everyone has a right to their case being heard.

4. Charter of Human Rights

When I was younger I was a great fan of human rights charters. I was more left-wing, less cynical and jaded. But I must confess that I’m not so enamoured of them now, although I concede that such a view is contentious and unfashionable. I come to this view after being thoroughly depressed by International Law and human rights law at university: it always seemed to me like shutting the door after the horse has bolted. Everyone looks at Rwanda and says “Genocide is an abuse of human rights” – but did anyone stop it happening at the time? A Charter of Rights just gives lawyers a reason to ponce around and act like they are good for humanity, but I don’t know whether it will really make such a difference in the long run. Feel free to castigate me for being such a nasty old curmudgeon.

I tend to think that if a government or an individual is determined to abuse someone’s rights, they’ll do it anyway. Look at the Freedom of Information laws, for example. They were designed to give the public access to government documents, but as far as I can see, the government has just devised niftier ways of hiding information from the public as a response. For example, I cite this recent High Court case on the FOI legislation. Depressing.

5. Conclusion

What would my priorities be? I like the first point made by Williams about the difficulties in obtaining legal advice. I’d also like a greater awareness of the law in the community, for legal advice to be more affordable and some research on litigants in person to be carried out.

In terms of the federalism point, I’d like there to be greater uniformity of laws across Australia (eg, Uniform Evidence Law, Uniform Torrens Acts, Uniform Criminal Codes etc). It seems stupid to have regional variation. I have some interesting arguments about ways in which Equity should be used more flexibly to make our commercial law fairer, but I’ll save them for the PhD thesis. On a more “political” level, I’d also like our taxation system to be simplified and the bureaucracy and doubling up to be reduced.

I’d like Hicks to be brought home, but I’d also like to keep in mind the plight of other everyday people in Australia who are in difficulty because they don’t understand the law and don’t know where to turn.

My main concern, I suppose, is that the law be approachable and accessible for as many people as possible, and that people have a chance to be treated fairly and equally, to obtain quality and affordable legal representation, and to have their case heard. I think all of my wishes flow from that basic tenet.

Update

An interesting opinion in The Australian about the use and abuses of a Charter of Human Rights.

More on Litigants in Person

Thank you to the reader who tipped me off to the article in yesterday’s AFR in relation to unrepresented litigants. It seems that my previous post on litigants in person was topical.

The Victorian Supreme Court is apparently going to set up an unrepresented litigants coordinator to help deal with the expectations and questions from litigants in person.

It would be interesting to know the following:

1. Did unrepresented litigants initially seek legal advice when their problem arose?
2. If not, why didn’t they seek legal advice? For example, was legal advice too expensive? Was it too hard to find facilities to help? Or did they fail to realise how serious the situation was until too late?
3. If they did seek legal advice, why were they now unrepresented? Was it because they were disappointed with legal advice they received? Was that disappointment merited?
4. What did the unrepresented litigant hope to achieve in his or her case? Was that expectation realistic?

Someone has probably already conducted studies of this sort, but it would be useful if the unrepresented litigant coordinator collected information of this type. It could be pinpointed whether the problem arises as a result of an inability to obtain legal advice, lack of knowledge of the options out there, or because the expectations of some litigants are intrinsically unrealistic. The problem is on the rise, so there must be factors contributing to this rise. If we gain further knowledge about why the problem is growing, lawyers, courts and litigants could look at strategies to reduce the number of litigants who feel aggrieved by the court system and those who continue to bring claims with no hope of success.

For those who are interested, the AFR article is excerpted below:

‘Do-it-yourself claims clogging up courts’, Matt Drummond, Australian Financial Review, 16 June 2006

David Lindsey is one of thousands of unrepresented litigants clogging up the courts. Over two years he made eight separate attempts to launch a lawsuit against Phillip Morris – all unsuccessful. To file his statement of claim, Mr Lindsey first needed to obtain leave of the court because he had been declared a vexatious litigant. But without professional legal advice, and with Allens Arthur Robinson on the other side, he was unable to prove his case had any merit.

In fact, the respondents argued that Mr Lindsey’s “dark conspiracies about lawyers” and the “hawking” of his application from judge to judge was bringing the administration of justice into disrepute.

The case has prompted the president of the Victorian Court of Appeal Chris Maxwell to overhaul the way the court deals with unrepresented litigants, who strain already tight resources and test the patience of registry staff and judges.

In an interview with The Australian Financial Review, Justice Maxwell has revealed the court has just employed an unrepresented litigants co-ordinator to act as a contact point, explain procedures, and most importantly, help manage expectations.

“I had five unrepresented appellants [within] the first five months [of being appointed in July 2005] and I realised there are real challenges for a court in providing the type of hearing that an unrepresented litigant wants and needs, but on the other hand husbanding court resources, scarce as they are,” he told the
AFR.

Unrepresented litigants are a growing problem. Last month High Court chief executive Chris Doogan told a Senate estimates committee that the number of unrepresented litigants making special leave applications had risen from 31 applications 10 years ago to 404 last year. Only two were granted special leave in 2005, but no matter how low the prospects of success they were not dissuaded, Mr Doogan said.

The costs were not only borne by the courts, but also by respondents who felt obliged to respond to the case put against them.

Robert Cornall, secretary of the federal Attorney-General’s Department, told the committee that unrepresented litigants had become a significant problem. “But short of stopping people having access to the courts that they are entitled to in a democratic society, it is very difficult to see what you are able to do if people persist with a claim when they have been squarely told that their claim has no merit.”

According to Justice Maxwell, the biggest problem for judges is managing the expectations of unrepresented litigants. The co-ordinator’s role would be to remove some of that pressure and other courts were looking at the Victorian proposal, he
said.

As for Mr Lindsey, on his ninth attempt and without any help, he succeeded in convincing the court his case had merit. The tobacco giant swiftly appealed but lost, meaning Mr Lindsey’s case will finally be heard.

“He was someone who was good at helping himself. Many of them don’t have that ability and presence of mind,” Justice Maxwell told the AFR. “I feel considerable sympathy for people who have a strong sense of grievance or frustration that they haven’t been listened to, or that the system hasn’t given them justice. The sympathy you feel doesn’t, of course, mean you think they’ve been hard done by. But you naturally feel like … you want to give them a fair hearing.”

Litigants in person

As a lawyer who has worked in and around the Courts for most of my career, I have seen a number of litigants in person. For the non-lawyers out there, a litigant in person is a person who is representing himself or herself in a legal case.

I have found many litigants in person very difficult to handle. However, I can’t speak for them all; there may be some perfectly well balanced ones out there. Indeed, there are occasional success stories involving litigants in person. For example, the Gambottos represented themselves in the High Court case of Gambotto, involving oppression of minority shareholders, and were successful. So part of the problem is that Courts and lawyers can’t just automatically write off a litigant in person, and everybody deserves a chance to make their case.

However, the kind of litigants in person about whom I am speaking have the following hallmarks:

1. An obsessive fixation on their grievance;
2. A tendency to produce a giant wad of documents in support of their claims (some of which are not at all relevant);
3. A tendency to file documents which use quasi-legal jargon but from which it is very difficult to glean any real issues. In addition, such documents often have combinations of CAPITALS, underlining and bold text to highlight certain points.
4. Litigants in person refuse to listen to advice on their claims, and tend to get very angry when someone suggests that they do not have a valid claim.
5. Litigants in person often have a tendency to generate conspiracy theories as to why they have not been successful in previous Court actions – the most prominent conspiracy theory being that the Court is populated by Masons and that this has somehow affected the judgment of the Court.

Many litigants in person have purported to secede from the rest of the State or the country and to have set up their own country which they say does not recognise the jurisdiction of the Court. Some litigants in person challenge the validity of the State Constitution and inevitably produce documents such as the Magna Carta and the Bill of Rights in support of their argument.

It is a significant problem for Courts and lawyers in dealing with most litigants in person as they take up a lot of time, and can be very frustrating to deal with. Most of the time, the arguments advanced are without any merit, or have expanded well beyond the ambit of the original grievance (extending to suing the lawyers involved and members of parliament). However, Courts are reluctant to dismiss litigants in person without a fair hearing, as it may just be that they have a genuine cause.

Getting involved in litigation is presumably rather fruitless for the average litigant in person. Many of the more obsessive ones seem to have given up any job and devoted their lives to their litigation, which is one of the reasons why they get angry when someone suggests that they have no legal argument – to suggest this is challenging their whole raison d’etre.

I have watched numerous judges listen patiently to litigants in person, then try to explain to the litigant that they have no cause of action. Usually this is met with anger and outright denial. On one occasion, a judge was trying to explain that there was no case, but the litigant in person shouted at the judge “I thought that you were different, but I can see now that you are against me like all the others”. He proceeded to throw all his books and papers on the floor violently, prompting the judge to send him out of the Court. I have heard of other litigants in person trying to attack court staff or police and ending up in gaol. My own emotions when dealing with such people has been equal parts frustration and pity.

What you really want to do is to sit the person down and tell them that there really is no point bringing this grievance before the Court, as there is no law to support their position, and that they are wasting their own time and the time of the Court. Unfortunately, there is no way they will believe anyone (even a High Court Judge). Many of them come back before a Court time and time again, rehashing the same grievances in different forms. The problem is that once they have reached this stage, there is very little anyone can do to reason with them.

I am not a psychologist or a psychiatrist. However, I wonder if there is a way that lawyers and Courts can deal with these litigants to minimise the chance of people turning into litigants in person? I would be interested to see if there are any strategies that can be implemented by law firms and Courts. There are some factual scenarios which seem to be more likely to lead to litigants in person, particularly those which involve very emotional and personal matters (such as divorce, child custody and repossession of a house).

It is important to leave people under no illusions as to the potential consequences of legal action so that they do not go into denial when the unthinkable happens. When in practice, I was amazed at how many people ignored terrible situations until the Sheriff knocked on their door or they were in the witness box being cross examined. Perhaps it’s just human nature. Nevertheless, I maintain that there needs to be better community education about legal matters generally. It is also very important that people have access to affordable legal representation. People lose objectivity and perspective when they represent themselves, and in the extreme case of the litigant in person, they may lose their grip on reality entirely. However, as I have pointed out in a previous post, hiring a lawyer can be expensive and it can be very difficult to know where to turn. Sometimes, also, there is nothing you can do – a client turns away when they are given advice that they don’t want to hear.

I am not sure what the answer is. Any suggestions welcomed!

Litigants in person

As a lawyer who has worked in and around the Courts for most of my career, I have seen a number of litigants in person. For the non-lawyers out there, a litigant in person is a person who is representing himself or herself in a legal case.

I have found many litigants in person very difficult to handle. However, I can’t speak for them all; there may be some perfectly well balanced ones out there. Indeed, there are occasional success stories involving litigants in person. For example, the Gambottos represented themselves in the High Court case of Gambotto, involving oppression of minority shareholders, and were successful. So part of the problem is that Courts and lawyers can’t just automatically write off a litigant in person, and everybody deserves a chance to make their case.

However, the kind of litigants in person about whom I am speaking have the following hallmarks:

1. An obsessive fixation on their grievance;
2. A tendency to produce a giant wad of documents in support of their claims (some of which are not at all relevant);
3. A tendency to file documents which use quasi-legal jargon but from which it is very difficult to glean any real issues. In addition, such documents often have combinations of CAPITALS, underlining and bold text to highlight certain points.
4. Litigants in person refuse to listen to advice on their claims, and tend to get very angry when someone suggests that they do not have a valid claim.
5. Litigants in person often have a tendency to generate conspiracy theories as to why they have not been successful in previous Court actions – the most prominent conspiracy theory being that the Court is populated by Masons and that this has somehow affected the judgment of the Court.

Many litigants in person have purported to secede from the rest of the State or the country and to have set up their own country which they say does not recognise the jurisdiction of the Court. Some litigants in person challenge the validity of the State Constitution and inevitably produce documents such as the Magna Carta and the Bill of Rights in support of their argument.

It is a significant problem for Courts and lawyers in dealing with most litigants in person as they take up a lot of time, and can be very frustrating to deal with. Most of the time, the arguments advanced are without any merit, or have expanded well beyond the ambit of the original grievance (extending to suing the lawyers involved and members of parliament). However, Courts are reluctant to dismiss litigants in person without a fair hearing, as it may just be that they have a genuine cause.

Getting involved in litigation is presumably rather fruitless for the average litigant in person. Many of the more obsessive ones seem to have given up any job and devoted their lives to their litigation, which is one of the reasons why they get angry when someone suggests that they have no legal argument – to suggest this is challenging their whole raison d’etre.

I have watched numerous judges listen patiently to litigants in person, then try to explain to the litigant that they have no cause of action. Usually this is met with anger and outright denial. On one occasion, a judge was trying to explain that there was no case, but the litigant in person shouted at the judge “I thought that you were different, but I can see now that you are against me like all the others”. He proceeded to throw all his books and papers on the floor violently, prompting the judge to send him out of the Court. I have heard of other litigants in person trying to attack court staff or police and ending up in gaol. My own emotions when dealing with such people has been equal parts frustration and pity.

What you really want to do is to sit the person down and tell them that there really is no point bringing this grievance before the Court, as there is no law to support their position, and that they are wasting their own time and the time of the Court. Unfortunately, there is no way they will believe anyone (even a High Court Judge). Many of them come back before a Court time and time again, rehashing the same grievances in different forms. The problem is that once they have reached this stage, there is very little anyone can do to reason with them.

I am not a psychologist or a psychiatrist. However, I wonder if there is a way that lawyers and Courts can deal with these litigants to minimise the chance of people turning into litigants in person? I would be interested to see if there are any strategies that can be implemented by law firms and Courts. There are some factual scenarios which seem to be more likely to lead to litigants in person, particularly those which involve very emotional and personal matters (such as divorce, child custody and repossession of a house).

It is important to leave people under no illusions as to the potential consequences of legal action so that they do not go into denial when the unthinkable happens. When in practice, I was amazed at how many people ignored terrible situations until the Sheriff knocked on their door or they were in the witness box being cross examined. Perhaps it’s just human nature. Nevertheless, I maintain that there needs to be better community education about legal matters generally. It is also very important that people have access to affordable legal representation. People lose objectivity and perspective when they represent themselves, and in the extreme case of the litigant in person, they may lose their grip on reality entirely. However, as I have pointed out in a previous post, hiring a lawyer can be expensive and it can be very difficult to know where to turn. Sometimes, also, there is nothing you can do – a client turns away when they are given advice that they don’t want to hear.

I am not sure what the answer is. Any suggestions welcomed!